USCIS Issues Revised Final Guidance on Unlawful Presence for Students and Exchange Visitors

08/10/2018

USCIS has released an updated policy memorandum titled "Accrual of Unlawful Presence and F, J, and M, Nonimmigrants" concerning individuals holding F, J, and M status. This new memorandum, which supersedes the previously-published May 10, 2018 guidance, clarifies when F, J, and M nonimmigrants begin accruing unlawful presence.

Under the revised policy memorandum, effective August 9, 2018, an F or M nonimmigrant will not accrue unlawful presence during the period a timely-filed reinstatement application is pending with USCIS. If the application is denied, the accrual of unlawful presence resumes on the day after the denial. However, regardless of whether an application for reinstatement is timely-filed, an F, J, or M nonimmigrant whose application for reinstatement is ultimately approved will generally not accrue unlawful presence while the nonimmigrant was out of status.

Because J visas are administered by the Department of State ("DOS"), the DOS also adjudicates reinstatement requests filed by J nonimmigrants. If a J nonimmigrant's reinstatement application is approved, the individual will generally not accrue unlawful presence from the time the J nonimmigrant fell out of status to the time the nonimmigrant's status is reinstated.

Please see below regarding the guidance on when an F, J, or M nonimmigrant begins accruing unlawful presence:

F, J, or M nonimmigrants who failed to maintain nonimmigrant status before August 9, 2018:

F, J, or M nonimmigrants who failed to maintain nonimmigrant status before 8/9/2018 start accruing unlawful presence based on that failure on August 9, 2018, unless the nonimmigrant had already started accruing unlawful presence on the earliest of the following:

The day after DHS denied the request for an immigration benefit, if DHS made a formal finding that the individual violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
• The day after the individual's I-94 expired if the individual was admitted until a certain date and not admitted for duration of status (D/S); or
The day after an immigration judge ordered the individual excluded, deported, or removed (regardless of whether the decision is appealed).

F, J, or M nonimmigrants who failed to maintain nonimmigrant status on or after August 9, 2018:

The day after the F, J, or M nonimmigrant no longer pursues the course or study or the authorized activity, or the day after he or she engages in an unauthorized activity;
The day after completing the course or study or program (including any authorized practical training plus any authorized grace period, as outlined in 8 CFR 214.2);
The day after the Form I-94 expires, if the F, J, or M nonimmigrant was admitted for a specific period and not for duration of status (D/S); or
The day after an immigration judge orders the individual excluded, deported, or removed (regardless of whether the decision is appealed).